The Employer and Union above are parties to a 1992-94 collective bargaining
agreement which provides for final and binding arbitration of certain disputes.
The parties requested the Wisconsin Employment Relations Commission to appoint
an arbitrator to resolve the grievance of Lola Wilson, concerning layoff and
bumping.

The undersigned was appointed and held a hearing on February 18, 1993, at
which time the parties were given full opportunity to present their evidence and
arguments. No transcript was made, both parties filed briefs, and the record was
closed on March 31, 1993.

ISSUES:

The Union proposes the following:

1. Did the County violate the collective bargaining
agreement when it
did not allow Lola Wilson to bump from her position as a Home and
Financial Specialist II to the positions of Social Services Aide III
or II?

2. If so, what is the appropriate remedy?

The Employer's version is:

1. Is the grievance arbitrable?

2. Did the County violate the collective bargaining
agreement when it
did not allow Lola Wilson to bump from her position as a Home and
Financial Specialist II to the position of Social Services Aide II?

3. If so, what is the appropriate remedy?

RELEVANT CONTRACTUAL PROVISIONS:

. . .

Article 4 - Promotions/Vacancies/New Positions

4.01 When vacancies occur or new positions are created, the
Employer
shall post a notice of such vacancy or new position on the bulletin
board for a period of five (45) working days. The posting shall
contain the title of the position, duties and wage. Any employee
interested in the position shall apply in writing to the Personnel
Department and shall be considered an applicant. The Employer shall
give first consideration in filling the position, as outlined below,
to an employee from within the department where the opening exists,
if one applies, then employees from other departments within the
bargaining unit before new personnel is hired. The Employer agrees
to make promotions and to fill vacancies in compliance with the
criteria contained in Section 4.02.

4.02 Qualifications for a job shall be determined on the basis
of
ability, efficiency, experience and physical fitness of the employee
in accordance with standards established by the Employer. These
standards shall be fair to all applicants and be applied uniformly
in all departments. Where qualifications of the applicants are
relatively equal, seniority shall be the determining factor.

In regard to any disputes which arise from
this section, the burden of
proof regarding candidate qualifications rests with the Employer.

Qualifications (i.e., ability, efficiency,
experience and physical
fitness) shall commensurate with job descriptions and work to be performed.

. . .

4.04 An employee who is promoted or transferred (except in
transfers when
it is found an employee is not qualified for work in one department,
but could possibly qualify in another department) shall be given a
training and qualifying period to determine whether or not the
employee can meet the job requirements. Such training and
qualifying period to be dependent upon the classification into which
the employee is transferred or promoted.

Group I . . . . . . . . . . . . . . . 30 Days

Group II . . . . . . . . . . . . . . . 45 Days

Group III . . . . . . . . . . . . . . 60 Days

Group IV or Above . . . . . . . . . . 75 Days

If at the end of this period, the employee fails to qualify or the
job is
discontinued, the employee shall be allowed to return to his/her former position.
If employees are placed in their former position, the Employer must be able to
demonstrate through evaluations or other means that the employee could not
satisfactorily perform in the new position. If at the end of this period, an
employee does not like the requirements of the new job, such employee shall be
allowed to return to his/her former position without loss of seniority.

. . .

Article 6 - Layoffs

6.01 If the Employer finds it necessary to reduce the number
of
employees, employees will be laid off by department and aptitude,
ability, and seniority shall be the basis for selecting those to be
laid off. Where the first two (2) qualifications are equal and
employees can perform the remaining work available, seniority shall
become the determining factor.

. . .

Article 15 - Work Day and Work Week

15.01 Courthouse, Social Services, and Unified Services: The
normal work
day for regular full-time employees shall be seven and three fourths
(7-3/4) hours, 8 a.m. to 12 Noon and 1 p.m. to 4:45 p.m. The normal
work week for regular full-time employees shall consist of five (5)
work days, Monday through Friday, and shall normally be of thirty-eight and three-fourths
(38-3/4) hours duration. This section shall
not be construed as, and is not a guarantee of, any number of hours
of work per day or per week.

The hours of work of individual employees
may be varied by mutual
agreement of the employee, the department head, and the Union. The Union will
not unreasonably withhold mutual agreement to schedule variances.

. . .

FACTS:

Initially, I note that the parties requested a bench decision on
arbitrability; this Award merely confirms that the decision was that the
grievance was found arbitrable, for reasons explained at the hearing.

Grievant Lola Wilson was employed for about 18 years in the classification
of Homemaker before this classification was redefined as Home and Financial
Specialist on January 1, 1992. Both classification names relate to a job in
which the grievant represented "difficult" people to agencies and programs, also
teaching child care, money management and household management to families in
need, juveniles and the elderly. The grievant, at the time the grievance arose,
was the junior of two Home and Financial Specialists employed by the Department,
and was the sole one assigned to the Wisconsin Rapids office.

On or about July 29, 1992, the grievant was handling a case load of eight
clients, noticeably down from the usual ten to fifteen clients which make up a
full-time workload. Her supervisor, Bruce Zanow, then informed her that as the
junior Home and Financial Specialist in the Department's employ, her hours were
being reduced due to lack of work. For the following three weeks, the grievant's
hours were reduced from 38 3/4 hours per week to 20; for another three weeks her
hours were 27 per week. After that, a rise in the case load caused her to be
returned to full-time. The initial reduction in hours took effect August 3.

On August 5, the grievant requested to bump into the Social Services Aide
position, identifying the positions held by Terri Conrad, Jackie Fuller and Donna
Hahn as the positions she wished to be considered for. All three are junior to
the grievant, but a typographical error in the grievant's letter identified
Fuller and Hahn as Aide II's, where as their actual classification was the
(higher) III level. Social Services Aide II's were, at the time, paid at the
same rate as Home and Financial Specialist II's.

The grievant's request was denied, and the subsequent grievance alleged
that the County had improperly failed to take into account the grievant's
ability, aptitude and seniority. Deputy Director Gary Van Lysal replied to the
grievance to the effect that "there are no other positions where work could be
performed without additional training and orientation." Van Lysal maintained
that the Department was not obligated to engage in additional training in a
bumping situation.

During the grievant's testimony, she was questioned by the County on a list
of items which the County considered key to an understanding of the Social
Services Aide II position. The grievant gave correct answers to some of the
questions, but missed others; Van Lysal testified that a Social Services Aide II
would have answered all of these questions correctly. The grievant testified
that after the County more recently moved toward a merging of positions and began
to cross-train employes, she was used to train other employes in the "homemaker"
aspects of what was now a single job classification of Social Worker Assistant.
Van Lysal testified that the grievant was, in turn, being trained in aspects of
the job formerly assigned to Social Service Aides. The parties presented
performance evaluations for the grievant covering 1990 and 1991, and for Terri
Wood [now Conrad] for 1989 and 1991-92. The grievant testified that her 1991
evaluation, which listed her in the "requires improvement" level (#2 of five
levels) in five of 22 specified items, was excessively influenced by a single
incident for which she received a three-day suspension in that year. The
grievant did not grieve the suspension, but testified that she considered the
ethics allegation involved to be settled as of the date at which a potential
discharge was resolved, and that it was improper to emphasize it in her
evaluation some months later. Her 1990 review, however, listed the grievant at
the medium "3" level of five in all but one of ten items included in that form;
the tenth was at the below-standard "2" level. Wood, meanwhile, was at the
medium level or above in all items on both evaluations.

In a 1988 arbitration award, Arbitrator William C. Houlihan determined that
the same contract language required the Employer to demonstrate that there was
an inequality of aptitude and/or ability between two employes when the Employer
wished to lay off the senior of the two. In the particular case then under
discussion, Arbitrator Houlihan found that the Employer had met that burden,
relying primarily on the relative evaluations of the employes involved. In 1991
contract negotiations, the Union proposed to replace the applicable section of
the Agreement with the following language:

U4. Section 3.02, Seniority - Change as follows:

Seniority, if aptitude
and ability are equal, shall govern in
promotions, transfers, filling vacancies, new jobs, layoffs, and recalls after
layoffs.

U5. Section 3.04, Layoffs/Reductions in Work
Force:

In the event of a
reduction in the work force, there shall be two (2)
seniority groups -regular full-time employees and regular part-time employees,
who shall be retained on the basis of the oldest in post of service in their
respective groups if they are qualified to perform the available work.

All regular part-time employees shall be laid off first.

Employees on layoff shall be returned to work in reverse order of
being laid off. No new employee shall be hired until all qualified employees on
layoff are returned to work.

Laid off employees shall have the right to bump employees within the
bargaining unit who have less seniority, provided that laid off employees have
the ability and skills to perform the job. The bumping process shall then
continue until the least senior employees are laid off. Senior employees may
elect to be laid off first.

. . .

The Union was not successful in this attempt, and the contract language
remained as it was.

THE UNION'S POSITION:

The Union contends first that the reduction in hours constitutes a layoff
under both generally accepted principles and the Employer's prior stipulation in
the Houlihan award. The Union argues that even in the absence of specific
bumping language, an implied right to bump can be inferred from the nature of the
layoff language referring to remaining employes having the ability to do the
work. The Union argues that if the County's argument that this was not a layoff
as accepted, the fact that the Union negotiated in the second paragraph of
Article 15, creating an obligation on the County's part to negotiate changes in
hours of work of individual employes, would then control.

The Union argues that the County has taken no action to advise the grievant
of any general performance problems, and notes that Van Lysal testified that his
own supervisors had failed to do so. The Union argues that Van Lysal's testimony
that it takes three to four months to train someone for the Social Services Aide
work is undercut by the experience of Peg Oberbeck, an employe who was trained
in a new job to an adequate level within a few weeks according to supervisor John
Klonsinski's testimony. The Union cites Arbitrator Paul Prasow in Shore Medal
Products Company(1) as showing
that there is a distinction between a training
period and a breaking-in or familiarization period, finding in that case that a
two or three day familiarization period was reasonable. The Union cites
Arbitrator Prasow as stating that arbitrators ".... hold the view that the
ability is essentially aptitude or natural capacity, faculties and talent". The
Union further argues that there is a high degree of correlation between the
grievant's Home and Financial Specialist work and the Social Services Aide work,
justifying a conclusion that the grievant's seniority should prevail. The Union
requests a remedy amounting to backpay for the hours lost before the grievant was
returned to full-time status.

THE EMPLOYER'S POSITION

The Employer contends that the key language is whether "employees can
perform the remaining work available" in Article 6.01. The Employer argues that
the evidence as to the grievant's performance in her current job, her community
efforts and her character were "diversionary tactics" by the Union which do not
relate to the fundamental question of whether the grievant could perform the
remaining work available. The Employer points to testimony by John Klonsinski
to the effect that the grievant's answer to some basic questions posed of her at
the hearing demonstrated a weakness of understanding of key elements of the
Social Service Aide position. The Employer contends that to equate the
grievant's level of understanding to the incumbent's would require allowing for
a period of training not required by the collective bargaining agreement, and
would be an imposition of the Department. The County notes that the Union
proposed a change in contract language which would have that effect, but was not
successful.

DISCUSSION:

First, though the Agreement does not explicitly refer to bumping, the
contractual specification that "where the first two qualifications are equal and
employees can perform the remaining work available, seniority shall become the
determining factor" could impliedly allow for some kind of bumping. I agree with
the Union that a reduction in hours of this type, at least under this contract,
is clearly cognizable as a layoff. If there were any doubt, the fact that the
language has remained unchanged since a prior arbitrator so ruled, in a case
involving exactly the same type of hours reduction, would demonstrate that
stability of interpretation is served by continuing the same view. I note also
that the Employer somewhat misreads that Article by assuming that the key phrase
requires that the employe under discussion can perform the remaining work
available. The language, however, is in the plural, which may imply some
reassignment of duties. But that has its limitations, for the reasons that
follow.

It is clear that the Union has failed in an attempt to redefine the
contractual standard as one focusing primarily on seniority. Under Article 6.01,
aptitude and ability are the first two qualifications evaluated in a layoff or
bumping situation, and seniority determines only where these two qualifications
are equal. Like Arbitrator Houlihan before me, I agree with the Union that
determinations of aptitude and ability are somewhat imprecise, and that the
Employer as the party which made the decision has the obligation to establish
that a noticeable difference exists.

But I note that the Houlihan award found aptitude and ability of the junior
employe superior even where the senior employe was in the same classification,
based on differences in work performance. Here, the differences in work
performance between the grievant and Conrad are visible based on the evaluations,
even if for purposes of argument I were to discount the suspension given the
grievant in 1991. Furthermore, here the grievant clearly does not have the same
training and experience as the employe she wishes to "bump". While not all of
the questions posed to the grievant by the County might be considered free from
ambiguity, and while some of the grievant's answers were adequate in the
circumstances, I will summarize my impression of her testimony by saying that at
the conclusion of the grievant's testimony concerning the Social Services Aide
job, I lacked confidence that the grievant could perform that job adequately
within a short familiarization period, without constant supervision. This is
distinct from saying that the grievant had performance deficiencies: The
Employer is not obligated to show that the grievant was deficient in her position
to maintain that she was not entitled to bump.

In a contract where aptitude and ability are both listed, Arbitrator
Prasow's equation between these two terms is less persuasive than an
interpretation which implies that "ability" has some independent meaning, and is
not mere surplus language. To find that "ability" as used in Article 6.01 refers
to present ability, and not potential at some unspecified future date, would
answer that concern. In this connection I note that the training and qualifying
period, specified in this Agreement at 30 to 75 days depending on the position
involved, occurs under Article 4, a clause of the Agreement clearly tied to
promotions, vacancies and transfers. There is no reference to layoffs or bumping
anywhere in this clause, and general labor relations practice supports the
distinction, because it is uncommon for employes who wish to bump another employe
to be allowed a training or qualifying period of such length unless the contract
involved specifically provides for one.

The Prasow award cited by the Union identifies good reasons for presuming
that some short period of familiarization must be inferred in bumping situations;
otherwise, a right to bump where ability is considered equal would be a nullity,
since many jobs differ slightly. But Arbitrator Prasow's "two or possibly three
days at most" seems an appropriate length of familiarization time. This
distinguishes that concept from the clearly-delineated and much longer training
time specified in Article 4. In this instance, I conclude that the Employer has
sustained its burden of demonstrating that the differences between the grievant's
Home and Financial Specialist position and the Social Services Aide position were
sufficient, prior to the Department's reorganization, that a two-or three-day
familiarization period would have still left the Employer having to provide
substantial extra time in the form of close supervision in order to ensure that
the grievant could perform this position adequately. This is particularly true
where, as here, the position the grievant sought to bump into is one requiring
some degree of knowledge of a large number of programs and state policies, using
confusing terminology. (2) I therefore
conclude that the grievant's ability to
perform the job was not equal to that of the incumbent.

For the foregoing reasons, and based on the record as a whole, it is my
decision and

AWARD

1. That the grievance is arbitrable.

2. That the County did not violate the collective bargaining agreement by
denying Lola Wilson's request to bump a Social Services Aide.

2. I note that the Employer has to some degree
addressed the unlikelihood
that bumping could have been successfully accomplished by other employes
in similar situations in this Department, by beginning to cross-train
employes under a single job classification.